Opinion
CV156062167S
08-08-2018
Freeman SARGENT v. Tyler MCKEONE et al.
UNPUBLISHED OPINION
OPINION
Cobb, J.
In this negligence action arising from a three-car rear-end motor vehicle accident, the plaintiff, Freeman Sargent, seeks to recover damages for personal injuries he sustained in the accident. The plaintiff initiated this action against defendants Aby George, who was driving the car immediately behind the plaintiff, and Tyler McKeone, who was driving the car behind defendant George. The plaintiff’s complaint is in three counts. Counts one and two are against Defendant McKeone for negligence and recklessness, and count three is against defendant George and alleges negligence only.
John McKeone was also sued as the owner of the vehicle driven by Tyler.
On July 25, 2017, defendant George moved for summary judgment on count three of the substitute complaint dated March 24, 2016, on the ground that the undisputed material facts demonstrate that he and the plaintiff were at a full stop when he was struck from behind by defendant McKeone’s vehicle. As a result, defendant George claims that his car was pushed into the plaintiff’s car. Under these circumstances, defendant George argues that he is entitled to summary judgment because the undisputed material facts establish that he was not negligent under General Statutes § 14-240. The plaintiff, who admitted in his complaint and at his deposition that defendant George was at a full stop when the accident occurred, has not opposed defendant George’s motion for summary judgment.
Co-defendant McKeone, however, has opposed the motion for summary judgment, and argues that the court should deny it because there exist genuine disputed issues of material fact as to how the accident occurred. In support of his opposition, defendant McKeone has submitted an affidavit in which he states that defendant George’s car was not stopped but rather that "[t]he car directly in front of mine did not come to a complete stop before the collision." Defendant McKeone also states in his affidavit that: "at the time, prior to the collision, the car in front of me slammed on their brakes."
After briefing and argument on defendant George’s motion for summary judgment on May 15, 2018, defendant McKeone filed a request to amend his answer to deny that George was stopped and to assert a cross claim against George for apportionment. Defendant George has objected to the defendant’s request to amend. The request and objection are presently pending. Thus, there is no cross claim presently in this case.
The request to amend (# 132) and corresponding objection (# 133) are currently before a different judge. The court notes that the majority of superior courts that have considered the issue have disallowed cross claims based on apportionment. Nazmi v. Lena’s First & Last Pizzeria, Inc., Superior Court, judicial district of Hartford, Docket No. HHD-CV-126031317-S (November 27, 2013, Wagner, J.) (granting motion to strike cross claim for apportionment against a co-defendant, noting that "[w]hile there is currently a Superior Court split on the matter, most courts have found that apportionment complaints may only be served to those who are not a party to the action.") (Emphasis in original); Paparian v. Stew Leonards Danbury, LLC, Superior Court, judicial district of Hartford, Docket No. HHD-CV-126030059 (July 25, 2012, Woods, J.) (granting motion to strike cross claim for apportionment against a codefendant); Roklen v. Presnell, Superior Court, judicial district of New Haven, Docket No. CV-04-0287569-S (March 15, 2006, Taylor, J.) (granting motion to strike cross claim for apportionment against a co-defendant, noting that "[t]he majority of Superior Court decisions hold that General Statutes § 52-102b precludes a cross claim for apportionment against someone who is already a party to the action")."The majority position [is] ... that both the legislative history and the clear language of § 52-102b and 52-572h prohibit apportionment complaints against persons who are already parties to an action." Arevalo v. Pohlot, Superior Court, judicial district of Danbury, Docket No. DBD-CV-14-6015519-S (March 23, 2015, Truglia, J.); Gorka v. Zongbo Xu, Superior Court, judicial district of Waterbury, Docket No. UWY-CV-17-6035794-S (May 24, 2018, Brazzel-Massaro, J.T.R.) .
For the reasons stated below, the court grants defendant George’s motion for summary judgment.
The standards for the court’s consideration of summary judgment are well established. "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015). "Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).
"In the context of multi-car accidents, judges of the superior court have consistently granted summary judgment where it is undisputed that the middle vehicle was stopped at the time of the accident and the plaintiff fails to submit any evidence that the driver of the middle vehicle operated his car negligently." Belton v. Larson, Superior Court, judicial district of Middlesex, Docket No. MMX-CV-17-6018080 (June 29, 2018, Aurigemma, J.). See DiMatteo v. Castle Sedans, LLC, Superior Court, judicial district of Fairfield, Docket No. FBT-CV-14-6046647 (March 31, 2016, Arnold, J.) (granting summary judgment for defendant where "[t]he only evidence submitted by either the defendant or the plaintiff is that [the defendant’s] vehicle was at a full stop when it was struck by [the co-defendant’s] vehicle"); Havens v. Collard, Superior Court, judicial district of New Britain, Docket No. HHB-CV-04-4003510-S (February 23, 2006, Shapiro, J.); Posner v. Jones, Superior Court, judicial district of Middlesex, Docket No. CV-04-400766 (August 3, 2005, Aurigemma, J.); Bogart v. Castlevetro, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-95-0049595-S (September 25, 1995, Rush, J.) . Based on this consistent case law, and the plaintiff’s lack of opposition to defendant George’s motion for summary judgment, as between these parties, the court would grant summary judgment in favor of defendant George. However, the codefendant McKeone has opposed summary judgment, and the court must now assess his arguments that there exist disputed issues of material fact that require denial of the motion.
Defendant McKeone’s opposition to his co-defendant’s motion for summary judgment raises the issue as to whether a co-defendant is an "adverse party," pursuant to Practice Book § 17-45(b), and may file an opposition to a co-defendant’s motion for summary judgment in the absence of a cross claim or apportionment complaint or notice. The answer to this question is less than clear. Some superior courts that have considered the issue have found that the answer turns on whether the motion has the potential to adversely affect the interests of the non-moving co-defendant based upon the circumstances presented. See Cabral v. Velezis, Superior Court, judicial district of Waterbury, Docket No. CV-10-600475-S (February 14, 2012, Dooley, J.) (53 Conn.L.Rptr. 484); Feltman v. 64 Addison Road Associates, LLC, Superior Court, judicial district of New Haven, Docket No. CV-09-5028557-S (March 18, 2011, Fischer, J.); Guercia v. Connecticut Post, Superior Court, judicial district of New Haven, Docket No. CV-03-0474056-S (December 6, 2004, Zoarski, J.T.R.). Others have determined that a codefendant is not an adverse party and lacks "standing" to oppose summary judgment motion by a co-defendant. McGoldrick v. Aparisi, Superior Court, judicial district of New Haven, Docket No. 143325 (August 12, 1976, Burns, J.); Gidius v. Links, 30 Conn.Supp. 202, 203, 308 A.2d 841 (1973) (an opposing co-defendant is adverse only if it is connected to moving co-defendant by cross pleading). The phrase "adverse party" is used throughout the Practice Book, but is not defined and there are no Appellate or Supreme Court cases defining the phrase. Although federal courts do not use the phrase "adverse party," in the summary judgment context, there is a split of opinion in federal courts over whether co-defendants may oppose a co-defendant’s summary judgment motion. See J. Wolfson, "Warring Teammates: Standing To Oppose A Coparty’s Motion For Summary Judgment" 60 Drake L.Rev. 561 (2012) (comprehensive review of federal court decisions reveals lack of consensus as to whether co-party must have standing to oppose other co-party’s motion). The parties have not raised this specific issue and therefore the court does not decide it.
In his opposition, defendant McKeone first attempts to establish a disputed issue of fact as to whether defendant George was stopped, by stating in his affidavit that George’s vehicle "had not come to a complete stop." Although this evidence is contrary to statements of the plaintiff and defendant George, the court finds that it is not sufficient to establish a genuine issue of material fact as to whether George was negligent on the plaintiff’s § 14-240 claim in the substituted complaint. Section 14-240(a) provides that: "No driver of a motor vehicle shall follow another vehicle more closely that is reasonable and prudent, having regard for the speed of such vehicles, the traffic upon and the condition of the highway and weather conditions."
In Wrinn v. State, 234 Conn. 401, 661 A.2d 1034 (1995), the Supreme Court had occasion to discuss the elements of a claim under § 14-240. In Wrinn, the Supreme Court found that § 14-240 did not apply to all rear-end collisions, but is "directed against the dangerous and pernicious practice of ‘tailgating.’ " Id., 407. To prove a claim under this statute, the court held that the plaintiff must show that "(1) the rear vehicle ‘followed’ the front vehicle; and (2) the distance between the vehicles was closer than is reasonable and prudent under the circumstances." (Emphasis in original.) Id., 406. Importantly, there must also be evidence that "the two vehicles were simultaneously in motion, one traveling behind the other in the same lane." (Emphasis added.) Id., 408.
Thus, even if there is contrary evidence as to whether defendant George’s vehicle was moving, there is no contrary evidence to dispute the allegation that the plaintiff’s vehicle was stopped, and there is also no evidence presented by any party and no disputed material fact regarding whether defendant George was following the plaintiff at an unreasonable and imprudent distance. Thus, defendant McKeone’s assertion that defendant George’s vehicle was moving, although contrary to the other parties’ statements, is insufficient in of itself to establish defendant George’s negligence. This discrepancy therefore does not make any difference in the result of the case, and codefendant George is entitled to summary judgment as to this claim.
Turning to defendant McKeone’s argument that summary judgment should be denied because he has submitted a disputed issue on liability in his affidavit that defendant George "slammed on [his] brakes," and presumably is responsible for causing the accident. By this assertion, defendant McKeone has inserted a new claim into this lawsuit that is not contained in any present operative pleading. The plaintiff did not allege that defendant George was negligent because he slammed on his brakes. Rather, the plaintiff claims that George failed to brake in time to avoid the accident, and has not opposed defendant George’s summary judgment motion based on his claim that he was stopped. Defendant McKeone’s recently filed cross claim asserting this allegation has not yet been allowed by the court, and therefore is not part of this case or this court’s analysis. It has also not been asserted as a claim by the plaintiff against defendant George.
The introduction of a new claim in an affidavit that is not in an operative pleading, is not a basis for denying summary judgment because it is irrelevant and immaterial to the case. In deciding a motion for summary judgment, the court is "guided by how the parties pleaded and argued the case." Farina v. Mozelewski, 94 Conn.App. 203, 207, 891 A.2d 138 (2006). "The law governing summary judgment and the accompanying standard of review are well settled. Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case ... The facts at issue are those alleged in the pleadings." McKinney v. Chapman, 103 Conn.App. 446, 450, 929 A.2d 355, cert. denied, 284 Conn. 928, 929 A.2d 335 (2007); Mountaindale Condominium Assn., Inc. v. Zappone, 59 Conn.App. 311, 315, 757 A.2d 608, cert. denied, 254 Conn. 947, 762 A.2d 903 (2000) ("The facts at issue [in the context of summary judgment] are those alleged in the pleadings"). "The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise." Arnone v. Connecticut Light & Power, Co., 90 Conn.App. 188, 878 A.2d 347 (2005).
The defendant McKeone did not notify this court of the pending request and objection and has not filed any supplemental briefs arguing what, if any, impact this pending pleading may have on the defendant’s motion for summary judgment.
Thus, there being no pleading presently in this case that includes a claim that defendant George "slammed on the brakes," it is immaterial and therefore is not a basis, disputed or not, to deny summary judgment in this case. If the cross claim is allowed by the court, then defendant McKeone will have the opportunity to argue to the trier of fact that defendant George was responsible or partially responsible for accident and that the damages should be apportioned between the two defendants.
If the cross claim is not allowed by the court, the court is aware that the granting of defendant George’s motion for summary judgment could leave the McKeone defendants without an apportionment defense at trial. The situation raised here is akin to the one discussed in Viera v. Cohen, 283 Conn. 412, 927 A.2d 843 (2007). There, the Supreme Court held that a withdrawal of an action by a plaintiff against a defendant does not constitute a "release, settlement or similar agreement" under General Statues § 52-102b (f), that would allow the remaining defendant to file an apportionment complaint or notice. Like the situation in Viera, the situation here- granting of summary judgment as to a co-defendant, appears to be another "legislative gap [that] leaves the defendant without recourse to obtain apportionment." Id., 443.
For the reasons stated, defendant George’s motion for summary judgment is granted.
So ordered.